The First Amendment Right to Anonymous Online Speech

And its Limtits… Explaining the Decision to Disclose All Anonymous Defendants’ Identities in Blue Coast Productions v. Does

While I was literally “between offices” last month, this decision was handed down in a high-profile case, West Coast Productions, Inc. v. Does, pending in United States District Court (i.e., trial-level court) for Washington, D.C. It is one of three cases pending in that court brought by independent filmmakers against thousands* of ordinary citizens who are accused of downloading movies using the BitTorrent streaming protocol. The filmmakers say that they can tell what movies were downloaded and to what IP address, but (for reasons I’ll explain later), that’s not enough information to find out exactly who did the downloading. For that, they need information being held by the defendants’ various ISPs. They asked the court for permission, sent out civil subpoenas, a lot of people objected, and motions were filed. In her decision, Judge Colleen Kollar-Kotelly said that the filmmakers could find out what they wanted to know from the defendants’ ISPs.

* Literally. There are 5829 defendants in this one case alone.

As some of you know**, Internet speech is (along with the Stored Communications Act) an area of special interest for me. I’ve presented twice on the subject at ABA Annual Conferences, along with Thad Chaloemtiarana and Erick Howard, over the last few years. At one of these presentations, we preformed a full-blown mock hearing on a motion to quash a subpoena (issued to an ISP) seeking an anonymous defendant’s identity, in front of a sitting federal magistrate, complete with full briefing of the issues. I’ve also been keeping track of the judicial decisions being issued out of federal and state courts.

The question is: when can someone aggrieved by something your wrote anonymously online peel back your anonymity and discover your identity–presumably so you can be sued? This comes up in a variety of contexts, but the two most contentious are local (community) “electronic bulletin boards” (including those operated by local newspapers) and national “electronic bulletin boards” and comment threads dedicated to a (usually publicly traded) company. It also comes up in websites critical of a company or products (sometimes known as “sux” websites) and blogs (but again, typically where companies, products or local affairs are involved).

Obviously, you can’t be sued if you can’t be identified, so naturally you’d prefer not to be identified. Less cynically, you might have legitimate reasons to keep people from connecting you with your speech. You might not want to your employer, spouse, neighbors or business associates to know that you hold certain views or engage in certain (otherwise legal) behaviors. The First Amendment right to free speech is supposed to encourage unfettered discussion, and anonymity helps with that. (Heck, the Federalist Papers were published anonymously.)

Turn the issue around, and you could rephrase the question as: when can someone hide behind the cloak of anonymity when his or her online speech violates someone else’s rights? Let’s say someone posted something to a community forum about you that’s both untrue and harmful to your reputation. Or someone has posted confidential financial figures about your business on an online discussion group. How do you go about suing someone whose identity might not even be able to suspect? It might not be enshrined in the Constitution (the Founders didn’t seek to enumerate every single right), but you have a pretty ancient right to seek redress for wrongs done to you through the civil courts.

The free-speech concern is that not all victims of anonymous online speech are interested in seeking redress. Some just want the speaker’s identity, presumably so they can subject the speaker to some sort of extra-legal retribution, such as firing the speaker, shunning the speaker at the country club or posting one’s own dirt about the speaker. From a free-speech point of view, these implied extra-legal*** threats are a chill speech, undermining one of the key goals of the First Amendment.

*** What about legal threats (i.e., threat of a legal judgment)? By definition, the First Amendment protects against these. If what you said is protected by the First Amendment, you won’t be found liable. The problem is that, even if the First Amendment works perfectly, you’d still be subject to extra-legal retaliation. Also–and this is not just an afterthought but is a big deal–there is the extraordinary cost of defending yourself, even with the First Amendment in your corner.

Courts have generally handled this issue in two ways. All courts understand the right to seek redress through the courts. That makes sense–it’s what courts are for. In addition, many–perhaps most–courts also understand the importance of anonymity to free speech. These courts will seek to find some way to balance the right to free speech against the right to redress. They typically do this by demanding an additional showing–perhaps some evidence, or just some additional detail about the claim–from the plaintiff, to make sure the claim is really viable, and that the plaintiff is really serious about the claim. This helps to prevent the worst-case scenario: the speaker’s identity is exposed, but the plaintiff loses (so we’ve violated the right to free speech for nothing).

Some courts, though–mostly state courts, but perhaps also including a U.S. Court of Appeals–seem almost to ignore the First Amendment. To them, this is an incredibly simple question. You can’t have a lawsuit without a defendant, you can’t have a defendant without knowing the defendant’s identity, and we have a lawsuit; therefore, the defendant’s identity must be revealed.

In sum, we can feel pretty confident that anonymous online speakers have a First Amendment right to their anonymity, and we see that this right must be balanced against the right to obtain redress in court. And it’s nice to have such rights–but how do you assert them? How do they play out in practical terms? To understand that, you need to understand how plaintiffs go about trying to learn the identities of anonymous defendants in internet-related case–and that’ll be the subject of my next blog entry. Thanks for reading!